Any confirmation hearing for Justice Thomas would provide Democrats (and the country's cable media, which loves salacious stories) to reinvograte the investigation into the Anita Hill story. David Brock, who wrote The Real Anita Hill and whose evidence was relied upon by supporters of Justice Thomas, has claimed now that his book is made up of lies. Timothy Noah of Slate has noted, in reviewing Brock's newer book, Blinded by the Right, "the unique difficulty posed by any narrative that begins, 'I'm a liar, here's my tale.'" Whether Brock was lying then or is lying now, the point is that there would now be wall-to-wall media coverage of the issue again. Why would a rational Bush administration do this, when, if James Taranto is right, Republicans get a "free pass" on a Rehnquist replacement?

Maybe. But I am not sure that this issue has political legs--given the extensive public airing and prior confirmation. The Republicans will control the procedure of the Senate hearings, and, unless there is a new "smoking gun," it is hard to imagine they would allow any significant hearing time on this issue. The story is old news, and it seems unlikely that mainstream media would do more than a day or two on the story--absent hearings to cover.

Democratic mobilization on account of Thomas's age. Here's how Hasen puts the argument:

Justice Thomas is much younger than Justice Scalia. The risks to Democrats of a chief lasting that much longer are greater, and therefore it is worth fighting harder against Thomas.

Perhaps. But Thomas's confirmation as Chief will not change any votes. He is already on the Court. The interest groups that would oppose Scalia, Thomas, or someone new for Chief are already mobilized and likely to fight as hard as they are able against truly conservative nominee. The real questions are whether Democrats will filibuster, whether Republicans will go nuclear, and whether the Democrats will retaliate against the nuclear option with guerilla warfare tactics that would paralyze the Senate. (More on this here.) My sense is that the Democrats would need heavy political cover to shut down the Senate--and Thomas's age simply wouldn't do the trick. Moreover, the guerilla warfare option is very risky for Democrats, because it can trigger even more draconian transfers of power to the Senate majority leadership. Thomas's age just doesn't seem to be worth the risks involved, especially since we are not talking about a shift in votes.

LoPucki & Weyrauch on Legal Strategy
Lynn M. LoPucki and Walter O. Weyrauch (University of California, Los Angeles - School of Law and University of Florida, Levin College of Law) have posted A Theory of Legal Strategy (Duke Law Journal, Vol. 49, No. 6, April 2000) on SSRN. Here is the abstract:

By the conventional view, case outcomes are largely the product of courts' application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This article propounds such a theory. It classifies legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control. Strategies that depend upon the persuasion of judges are explained through a conception of law in which cases and statutes are almost wholly indeterminate and strategists infuse meaning into these empty rules in the process of argumentation. That meaning derives from social norms, patterns of outcomes, local practices and understandings, informal rules of factual inference, systems imperatives, community expectations, and so-called public policies. Constraint strategies operate through case selection, record making, legal planning, or media pressure. Strategists deprive judges of control by forum shopping, by preventing cases from reaching decision, or by causing them to be decided on issues other than the merits. The theory presented explains how superior lawyering can determine outcomes, why local legal cultures exist, how resources confer advantage in litigation, and one of the means by which law evolves.

Abstract:
This Article examines the complex world of Internet search. The Article seeks to ensure that trademark law does not interfere with the free flow of Internet content that consumers find relevant.
The Article starts with three complementary looks at Internet search from the perspectives of searchers, publishers and search providers. From the searcher's perspective, the Article explains how searchers select keywords poorly and decontextualized keywords provide inadequate insight into the searcher's true objectives.
From the publisher's perspective, the Article discusses how publishers try to anticipate search keywords and provide responsive content.
From the search provider's perspective, the Article shows that search providers are not passive intermediaries manipulated by deceptive publishers. Instead, search providers actively mediate the relationship between searchers and publishers, often modifying searcher keywords and publisher content to facilitate a match. The Article also explains that all search providers use keywords to make those matches, and the emergence of keyword-driven searches has eliminated any meaningful distinctions between domain names, metatags and keyword-triggered ads.
Based on this factual foundation, the Article looks at Internet trademark law. The Article particularly scrutinizes the initial interest confusion doctrine, showing its doctrinal deficiencies. The Article concludes with several proposals:
1) Trademark infringement analysis should be moved to later stages of a searcher's search process because harms at earlier stages are too speculative.
2) The traditional likelihood of consumer confusion test should be updated to include a factor that considers the relevancy of content presented to searchers.
3) Search providers should be given a safe harbor from liability to encourage them to do the best job possible at delivering relevant content to searchers.

Reference and Description
The Case against Two-Dimensionalism
Scott Soames
To read the entire book description and a sample chapter,
please visit:
http://www.pupress.princeton.edu/titles/7899.html
In this book, Scott Soames defends the revolution in
philosophy led by Saul Kripke, Hilary Putnam, and David
Kaplan against attack from those wishing to revive
descriptivism in the philosophy of language, internalism in
the philosophy of mind, and conceptualism in the foundations
of modality. Soames explains how, in the last twenty-five
years, this attack on the anti-descriptivist revolution has
coalesced around a technical development called
two-dimensional modal logic that seeks to reinterpret the
Kripkean categories of the necessary aposteriori and the
contingent apriori in ways that drain them of their
far-reaching philosophical significance.
0-691-12100-1 Cloth $39.50 US and £26.95
384 pages. 6 x 9.

Klick on Salvation as Solution to Free Rider Problems
Jonathan Klick (Florida State University - College of Law) has posted Salvation as a Selective Incentive (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:

As club goods, religions face the problem of free riding. Smaller religious clubs, such as cults or sects, can often surmount this problem through communal pressures or by requiring their members to provide easily monitored signals. Generally, however, such tactics will be unavailable or too costly for large denominations, and, as such, these denominations must look for other techniques to avoid free riding. This paper argues that the Roman Catholic doctrine of justification by faith and works serves as an Olsonian selective incentive, and presents empirical evidence in support of this claim. Specifically, I show that Catholics contribute significantly more to their churches as they approach death than do members of Protestant denominations. More generally, this paper suggests that church doctrines influence behavioral incentives and religious leaders may be able to capitalize on these behavioral effects for the benefit of their church.

Justice Clarence Thomas has generated the attention that most Justices receive only after they have retired. He has been boycotted by the National Bar Association, caricatured as a lawn jockey in Emerge Magazine, and protested by professors at an elite law school. As a general matter, Justice Thomas is viewed as a "non-race" man, a Justice with a jurisprudence that mirrors the Court's most conservative white member, Justice Antonin Scalia­, in other words, Justice Scalia in "blackface."
This Article argues that, although Justice Thomas's ideology differs from the liberalism that is more widely held by Blacks in the United States, such ideology is deeply grounded in black conservative thought, which has a "raced" history and foundation that are distinct from white conservatism. In so doing, this Article examines the development of black conservative thought in the United States; highlights pivotal experiences in Justice Thomas's life that have shaped his racial identity; and explicates the development of Justice Thomas's jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime.

The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain whether the making of federal common law by state courts is justified. A common premise of such theories - that courts make federal common law for the kinds of forward-looking policy reasons that would move Congress to enact a statute - largely accounts for the inadequacy. The Article proceeds to provide an account of the making of federal common law by state courts that considers historical practice, the constitutional structure, and certain normative claims about the way in which courts can and ought to make law. It concludes that state courts, when it is necessary to make federal common law in order to enforce existing law, are justified in doing so not as a deputy legislature, but as the result of attempting to best discern and apply existing principles of federal law. Finally, the Article identifies implications of this analysis for the operation of federal common law in federal courts.

There are secular moralities, such as utilitarianism. But should the Constitution, or political philosophy, be understood to prescribe utilitarianism, whether in the Benthamite or J. S. Mill versions, or maybe "secular humanism," as our civic religion? That might depend on the character of morality, on what kind of normative order morality is, exactly. Specifically, on whether it must be reasoned, functional, practical, articulably derived from or related to some unexceptionable social goal. Well, much or even most morality seems based, rather, on instinct, emotion, custom, history, politics, or ideology, rather than on widely shared social goals. Think of the absolute prohibition of infanticide in contrast to the far more tolerant view of even late-term abortions. Think of the prohibition of bullfighting, cock fights, and cruelty to animals generally. Think of the rejection in our society of the Islamic punishment code, public nudity, polygamy, indentured servitude, chain gangs, voluntary gladiatorial combat, forced redistribution of wealth, preventive war, torture, the mutilation of corpses, sex with corpses, sex with nonobjecting animals, child labor, duelling, suicide, euthanasia, arranged marriages, race and sex discrimination. Are there really compelling reasons for these unarguable tenets of the current American moral code? One can give reasons for them, but would they be anything more than rationalizations? They have causes, that history, sociology, or psychology might elucidate, but causes are not reasons.

And then Posner makes the following, extraordinary, statement:

If morality, or at least a large part of the moral domain, lives below reason as it were, isn't the practical consequence that morality is simply dominant public opinion?

This point is a very large one--implicating more than can be adequately discussed within the compass of a blog post. But perhaps I can make a few useful comments:

To begin, we need a distinction between two different senses of morality. On the one hand, there is "morality" as used by both ordinary folk and moral philosophers to refer to the realm of judgments about what is good and evil, right and wrong. On the other hand, there is "morality" as used to refer the norms of a particular culture. The term "morality" is used in both senses, and sometimes is used carelessly in ways that slide from one sense to the other.

In the second sense, morality as the norms of a particular culture, Posner is right: "morality is simply dominant public opinion." And how could he be wrong, that simply is the meaning of the second sense of morality. This is not as Posner puts it, a "practical consequence" of the facts that Posner enumerates. It is, rather, a more or less conceptual (or analytic) point.

In the first sense, morality as the realm of judgments about right and wrong, morality is most emphatically not "simply dominant public opinion." This is easy to see, because we can readily speak of the dominant public opinion about some question as being wrong or incorrect. "Nazi's thought that their treatment of Jews and other groups was morally correct, but they were wrong"--this statement does not involve an error of conceptual grammar. "Nazi's thought that their treatment of Jews an other groups was morally correct, but despite the fact that most people agreed with them at the time, it was nonetheless not the norm that characterized the culture of Nazi Germany"--that statement is self contradictory.

Posner also makes the following point about John Rawls's idea of public reason:

Rawls and others have thought that religious beliefs shouldn't be allowed to influence public policy, precisely because they are nondiscussable. But this view rests on a misunderstanding of democracy. Modern representative democracy isn't about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.

This is a rather careless reading of Rawls--who said no such thing. Rawls does advance an ideal of public reason. A very early statement of that ideal was similar to Posner's characterization of Rawls's position:

[G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.

But as Rawls worked out his idea, it evolved and was clarified in ways that are inconsistent with Posner's assertion that Rawls thought "religious beliefs should not be allowed to influence public policy." Here are a few of the differences between Rawls's view and Posner's characterization:

First and foremost, Rawls's idea of public reason was limited to what he called "the constitutional essentials" and hence it did not apply to ordinary legislation. Rawls most emphatically did not believe that ordinary democratic politics should exclude reliance on comprehensive philosophical and religious conceptions of the good.Second, as Rawls's thought evolved, he eventually came to what he called the "wide view" of public reason. Here is how he expressed the crucial feature of the wide view:

reasonable comprehensive doctrines, religious or nonreligious, may be *784 introduced in public political discussion at any time, provided that in due course proper political reasons--and not reasons given solely by comprehensive doctrines--are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support.

That is, Rawls's view of public reason does not require the exclusion of religious reasons (or the reasons provided by other comprehensive, nonreligious doctrinces, such as utilitarianism. Rather, it requires the inclusion of public reasons--in due course.

Posner's characterization, "religious beliefs shouldn?t be allowed to influence public policy," is inaccuare for yet another reason:

Third, religious reasons are allowed as supporting grounds, even for the constitutional essentials, if they are the foundations (or grounds) for public reasons. For example, in our political cutlure, the great value of the liberty of conscience is a clear example of a public reason. (Posner refers to President Bush's formulation of this principle in his post.) But one can support the liberty of conscience for religious reasons. An example is the role the doctrine of free faith played in gaining support for the liberty of conscience early in the history of liberalism. This religious reason for supporting liberty of conscience is, more or less, that belief can lead to salvation, only if the belief is free and therefore that coerced belief cannot lead to salvation. But the value of the liberty of conscience is a public reason?one that can be shared from a variety of perspectives.

In Crossroads and Blind Alleys: A Critical Examination of Recent Writing About Race, 62 Tex. L. Rev. 121 (2003), Professor Richard Delgado criticized the scholarly direction of Critical Race Theory (CRT). As a starting point for his criticism, Delgado reviews Crossroads, Directions, and a New Critical Race Theory (2002) edited by Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris. The volume consists primarily of papers and speeches presented at the Critical Race Theory conference at Yale Law School in 1997, an important event reflecting on ten years of CRT. Among the contributors to Crossroads are influential CRT scholars Derrick Bell, Kimberle Williams Crenshaw, Charles Lawrence III, Mari Matsuda, and others.
Delgado laments CRT's current focus, which he characterizes as "idealist" (and too much talk of discourse about inequality) as opposed to the "materialist" (and power disparities contributing to racial injustice). Crossroads, to Delgado, devotes too much to the ideal and, put simply, is filled with discourse about discourse.
Although Delgado makes important points about the state of CRT scholarship, this response contends that he overstates the distinction between the ideal and material forms of discourse and, by so doing, excessively criticizes CRT's direction, and fails to acknowledge the emerging critical scholarship that analyzes current the racial justice issues. In sum, this response questions Professor Delgado's criticism of Critical Race Theory, as well as his challenges to Critical Latina/o (LatCrit) Theory.

De Soysa, Bailey, & Neumayer on Democracy, Institutional Design, and Economic Sustainability
Indra De Soysa , Jennifer Bailey and Eric Neumayer (Norwegian University of Science and Technology , Norwegian University of Science and Technology - General and London School of Economics - Department of Geography and Environment) have posted Free to Squander? Democracy, Institutional Design, and Economic Sustainability, 1975-2000 on SSRN. Here is the abstract:

While democracy's effect on economic growth has come under intense empirical scrutiny, its effect on economic sustainability has been noticeably neglected. We assess the effects of regime type and democratic institutional design on economic, or "weak" sustainability. Sustainability requires that stocks of capital do not depreciate in value over time. The World Bank gauges the rate of net investment in manufactured, human, and natural capital, a unified indicator of weak sustainability (the genuine savings rate). All four indicators of democracy we examine show that freer societies have higher genuine savings rates because they invest more in human capital, create less CO2 damage, and extract fewer natural resources per economic unit produced, even if they show lower net investment in manufactured capital. Democracies may trade off immediate material welfare gains for future pay-offs. This finding justifies why scholars should assess the effects of regime type on more than just immediate growth or the rate of change of manufactured capital. Among democracies, we find that pure parliamentary systems spend more on education than do presidential ones, but exhibit no statistically significant difference for the overall genuine savings rate. Proportional representation electoral systems fare worse than plurality when it comes to genuine and net national savings, even though they do better on education spending. The results taken together show that differences in regime type and democratic institutional design allow for different trade-offs. The results are robust to a range of specifications and a developing country only sub-sample.

Feelings and Emotions offers a pleasing snapshot of current scientific thinking and research on emotions. It accurately depicts the contemporary status of feelings in psychological research by largely downplaying them. Feelings, to most theorists, are the "tip of the iceberg" (e.g. Scherer, p.139): a minor facet, passive component or even a distraction in emotion theory. There are indications, however, that the study of feelings may soon make a resurgence from an unlikely quarter: neuroscience. There are also hints that previously fundamentalist positions on the notorious cognition-emotion debate are converging at last. These are the subtle trends, more implied than declared, that help to distinguish Feelings and Emotions from similar anthologies.

Introduction
Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic philosophy. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, How to Do Things with Words. When we use language, we don't just communicate information or say things about how the world is; when we use language, we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which language (both oral and written) can be used to perform actions.
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory.Sentences, Propositions, Meaning, and Truth
There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value.O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values.
Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions.Form and Function
We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance.Utterance, Locution, Illocution, Perlocution
With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions:

Utterance--We can use the term "utterance" to refer to the words (e.g. the sounds or letters) that constitute a particular use of language.

Locution--We can use the term "locution" to refer to the semantic meaning of the utterance.

Illocution--We can use the term "illocution" to refer to the speech act that is performed by use of a particular utterance in a particular context.

Perlocution--We can use the term "perlocution" to refer to the effect that a given expression has when it is uttered in a particular context.

Take the example of the sentence, "This room is a pig sty." The utterance is simply the words that are used: suppose this is an oral statement in English made by a parent to a child on a particular occasion. The same parent could utter similar worlds in English (or another language) that have the same semantic content. "The family room is a pig sty"--would express the same propositional content as "This room is a pig sty" if "this room" was "the family room." The illocutionary force of this statement is ambiguous. If the child spoken to was responsible for the mess, then both parent and child might understand that "This room is a pig sty" is the equivalent of "Clean up this room." The same illocutionary force can be obtained by a variety of expressions. Finally, the perlocutionary effect of "This room is a pig sty" will also depend on context. The effect might be to produce shame, but it might also produce anger. Thus, one utterance has both locutionary content, illocutionary force, and perlocutionary effect.A Typology of Speech Acts
One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish:

There are other ways of slicing and dicing the types of speech acts, but Bach and Hamish's typology gives a good sense of how such a typology might work.Speech Act Theory and Legal TheoryHow can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle.
Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action.
Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed.
If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below.Links

Although it is currently the most important political ideal, there is much confusion about what the 'rule of law' means and how it works. Brian Tamanaha outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book's examination of the rule of law on a global level concludes by deciding whether the rule of law is a universal human good.

Download of the Week
The Download of the Week is Minimalism at War by Cass R. Sunstein. Here is the abstract:

When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. National Security Maximalism calls for a great deal of deference to the President, above all because of his authority as Commander-in-Chief of the Armed Forces. Liberty Maximalism asks courts to assume the same liberty-protecting posture in times of war as in times of peace. Minimalism asks courts to follow three precepts: the President needs clear congressional authorization for intruding on interests having a strong claim to constitutional protection; fair hearings should generally be provided to those who have been deprived of their freedom; and courts should discipline their own authority through narrow, incompletely theorized rulings. Of the three positions, Liberty Maximalism is the easiest to dismiss; courts will not and should not adopt it. National Security Maximalism is far more plausible, but it is in grave tension with the constitutional structure, and it is built on excessive optimism about the incentives of the President. The most appealing approach is minimalism, which does remarkably well in capturing prominent decisions of the Supreme Court in World War I, World War II, the Cold War, and the war on terrorism.

Two Papers by Rawls Online
Two well-known papers by John Rawls, Two Concepts of Rules and Justice as Fairness are now available online at HIST-ANALYTIC. I suspect most readers of LTB are familiar with these papers, at least by reputation. If not, these two papers are among the most important in modern political and moral philosophy. Very highly recommended.

As a relative newcomer to the world of legal theory, I am alternatively amazed and aghast at the confusion around attempts to model legal or moral choice as though they were analogous to the pricing decisions facing the sellers and purchasers of summer wheat. (No doubt this is why Sen is your favorite economist.) To your point, microeconomic models, in their sphere, explain so much we can accept their relatively minor failings. I may disagree whether it is appropriate to have so much in merger analysis hinge on the market definition issues that precede the Herfindahl calculations, but there can be little doubt that economic analysis brings insight into what is fundamentally a contingent economic issue: is consumer welfare likely diminished or enhanced by the merger?
I think there is more out there than you credit in the attempt to have rational choice theory explain (and predict) individual action. In Economic Analysis of Law, Richard Posner observes: “The basic assumption, that human behavior is rational, seems contradicted by the experiences and observations of everyday life. The contradiction is less acute when one understands that the concept of rationality used by the economist is objective rather than subjective, so that it would not be a solecism to speak of a rational frog.” In his most recent writing, he proposes an algorithm for the relationship between ex ante and e x post costs of contract construction: “The equation thus identifies the essential tradeoffs in analyzing the interpretation problem: the more the parties invest at the first stage, the lower the expected costs at the second stage.” I suppose this still purports to be an objective assessment, though to what end I am not sure, because the model assumes what we were spending the costs to clarify ex ante bear some relationship to the dispute ex post (see my Bewitchment paper you have previously been kind enough to post on your blog). Or to put it another way, the model is only helpful, I think, if individuals in the exercise of subjective judgment, actually make that calculation.& nbsp; Otherwise, what is the point? We should have a policy that we incur lots of buckshot ex ante costs regardless of their impact on the outcome?
When the world is so complex the exceptions to the model subsume the model's predictive capability, we have to step back and ask what we are doing. What I see is the desire, notwithstanding the disclaimer (also see the work of Eric Posner in this regard), to find the last link that would unravel, a la Freud, the mystery of subjective choice (hence, Judge Posner's view it is an embarrassment that economics cannot model how a judge will decide). As we move from the objective to t he subjective, and from the collective to the individual, from simple modelable decisions to those most normal humans would never permit to be resolved by a computer, the likelihood, as you point out, we will ever find a single predictive maximand decreases. Yet this is the overwhelming thrust of current scholarship.
I am skeptical - no, quite positive - there is no unified field theory equivalent of the objective and subjective, because despite the yearning for attainment of an Unconditioned First Principle of human behavior in science or economics (see my paper Contingency and Contracts: A Philosophy of Complex Business Transactions, http://ssrn.com/abstract=584441), no algorithm will ever tell a judge how to temper justice wit h mercy. That is because in the moment of decision, when it is time to apply a rule to a circumstance, we are free. (In this statement, I reveal myself as a child of Kant and Wittgenstein, and not Freud or any other philosophical determinist. I also recommend Linda Ross Meyer's "Is Practical Reason Mindless?" 86 Geo. L. J. 647 (1998)) We can measure (in theory) how most of us react and decide in that moment, but the possibility that one of us dissents and says "aha, now I understand the principle to be something else" invokes something we will never be able to measure. (My Bewitchment paper discusses this in the context of contract interpretation). (For an application of this to the mystery of judging where the demand of justice radically exceeds the ability of law or jurisprudence to address it, see the postcript to Hannah Arendt's Eichmann in Jerusalem.) My friend Susan Neiman uses Kant's&nbsp ;thought experiment to demonstrate the crossing from rational self-interested calculation to free moral choice. If the punishment for frequenting a brothel is that I will be hanged when I come out, it is of no great consequence to predict that I will find a way to avoid going in. But if now I am ordered to kill an innocent person on the pain of my own death, the possibility I will choose my own death proves that I am free. That moment of choice, which is the same as the moment of freedom when I apply a rule to the next circumstance or when I have a creative epiphany (also see Linda Ross Meyer, Beyond Reason and Power: Experiencing Legal Truth, 67 U. Cin. L. Rev. 727 (1999), is simply inconsistent with an objective model that, in its heart yearns to predict the subjective.

Introduction
I recently read with interest a paper by Hugo M. Mialon , Paul H. Rubin and Joel L. Schrag (Emory University, Department of Economics , Emory University and Emory University - Department of Economics) entitled Judicial Hierarchies and the Rule-Individual Tradeoff. (t's available on SSRN.) The paper deals with a cluster of topics that deeply interest me: rational choice modelling of judicial decision making, the relationship between trial and appellate courts, and theories of judicial motivation and character. This is an interesting paper, but as I read it I was acutely conscious of the vast gulf between economic models of judging and the phenomena being modelled. I have some comments on their paper, but first let me give you the abstract.The Abstract

We analyze decision-making in a simple model of the judicial hierarchy. We assume that trial court judges are more concerned with ex post efficiency with respect to the individuals involved in the cases at hand, and less concerned with ex ante efficiency with respect to the precedents established for society, than are appeals court judges. This implies that the preferred decisions of appeals court judges differ systematically from those of trial court judges. Appeals court judges can enforce their preferred decisions by reversing those of the trial court judges. However, in the model, litigants do not always appeal decisions that would be reversed, both because appeals are costly and because the outcome is uncertain. Consequently, appeals court judges may prefer to enact higher level rules that reduce the discretion of all judges.

Some Difficulties with Modelling Judicial Decision Making
One of the nice things about this paper is its very succinct summary of the literature. The authors include the famous quote from Richard Posner, which is worth repeating:

“At the heart of economic analysis of law is a mystery that is also an embarrassment: how to explain judicial
behavior in economic terms...”

There have to date been several attempts to explain judges’ behavior. Posner (1992) has argued that judges seek efficiency, and, more recently (since becoming one), that they seek the pleasures of spectators at plays (Posner, 1993). Whitman (2000), Miceli and Cosgel (1994), Rasmusen (1994), and Kornhauser (1992a,b) have argued that judges' behavior is based on a tradeoff between writing decisions they prefer and the possibility of reversal, either by higher courts or by future judges. Kobayashi and Lott (1994) have argued that judges will want to maximize litigation, and therefore will seek inefficient rules.

Lawyers are likely to be quite skeptical of all these models. Actual judicial motivations are complex and judicial behavior results from more than just motivations. Let me share just a few thoughts about these complexities by way of illustration:

Judges are motivated in part by the desire to do what the law requires. Extreme forms of legal realism may deny that this is case, but it is extremely difficult to reconcile such global skepticism with the facts. There may be a few judges who don't care a whit for the law, but this kind of corruption is relatively rare. Some judge want to do what is legally correct above all else, and almost all judges want to do what is legally correct at least some of the time.

But realist judging is also a fact. Some judges want to impose their personal preferences about outcomes through judicial fiat. Other judges believe that the law frequently gives them a certain amount of "wiggle room," that allows them to do what they think is right (as a matter of political morality) at least in some cases.

We might call the desire to do what the law requires "formalism" and the desire to do what the judge prefers "realism." Particular judges are likely to possess a mix of realist and formalist motivations, and the mix may vary from context to context. A particular judge might be a formalist in cases involving commercial law, but more realist in cases involving civil or constitutional rights.

This picture is complicated by the fact that judges have other motivations that may influence their decisions. Some judges may hope for promotion to a higher court, leading them to shade their decisions to increase the chance of their being selected by a President or Govenor with the power to promote them. Other judges may be partial to one (or more) of the parties to a dispute. Yet others may be prone to bias against a party or prone to anger that distorts their judgment. And of course, there is bad old-fashioned corruption. Some judges are disposed to resist these temptations--they have what I have called the "judicial virtues." Other judges are disposed to give into temptation--they suffer from "judicial vice."

Yet more complexity is added by the other inputs to judicial decision making. For example, one party to a dispute may have a better lawyer who provides higher quality inputs in the form of evidence and legal argument. In other cases, the lawyers for both sides may be poor; as a consequence, the judge may decide based on a distorted picture of the facts and the law.

Moreover, in the United States we have a multi-tiered system of appellate review. In the federal system, this usually means a trial court (the United States District Courts), an appellate court (the United States Courts of Appeals), and a court of last resort (the United States Supreme Court). If the case originates in a state system, there may be a trial court, intermediate appellate court, state court of last resort, with an appeal to the United States Supreme Court on questions of federal law--for a total of four tiers.

Multi-tiered appellate review is further complicated by the complex system of rules governing deference vel non in appellate review of trial court decisions. Vastly simplifying, there are three basic standards of appellate review:

--De Novo: Questons of law are reviewed de novo (as new), meaning that the appellate court owes no deference to the trial court's decision.
--Clearly Erroneous: Judicial findings of fact are reviewed (in the federal system) under a clearly erroneous standard. This is a highly deferential standard. The appellate court should uphold findings of fact that the appellate judges believe are in error, unless the error is clear. If the disagreement is over which witness to believe (credibility determinations), which of several reasonable inferences to draw from the evidence, or how to balance conflicting evidence, then the appellate court should uphold the trial judge's finding of fact.
--Abuse of Discretion: Managerial decisions by trial judges, as well as other decisions that characteristically require the exercise of practical judgment, are frequently review for abuse of discretion. This standard requires the appellate court to defer to the discretion of the trial court judge--even if the appellate judges would have decided the issue in a different way.

Juries add even more complexity, but let's set that aside for now.

Finally, judges also vary in their abilities. Some judges are learned; others are relatively ignorant of the content of the law. Some judges are brilliant; others are of average (or rarely, below average) intelligence. Some judges have good practical judgment or common sense; others are somewhat foolish.

So it is is not suprising that it is difficult to produce a robust model of judicial decision making. A model of economic behavior by firms that assumes that firms profit maximize misses quite a lot, but it gets so much right that it yields useful and interesting predictions. A model that simply assumes judges try to maximize efficiency (or any other single maximand) will be just plain awful. And if there are several different competing goals that judges pursue, it will be quite difficult to model their internal deliberative processes for familiar reasons.
This should come as no surprise. When judges decide cases they are engaged in a complex practical activity that responds to differential and imperfect information as well as individuated motivations and abilities. We don't expect rational choice models to predict individual behavior in detail in particular choice situations: try asking an economist to predict what you will do tomorrow!Assumptions & Reactions
Back to the paper! Mialon, Rubin, & Schrag make a number of assumptions--as good modellers must. Assumptions must be simple in order to get robust models off the ground, but some of their assumptions weren't so much "simple" as "simply wrong." Here is an example or two:

Mialon, Rubin, & Schrag state "The trial court judge JT decides the cases that arise in his jurisdiction, which corresponds to the geographic area where his rulings serve as precedents unless they are overturned on appeal." This assumption sounds quite reasonable, but it is inaccurate as a matter of fact in almost all jurisdictions. Trial court decisions of questions of law do not set precedents. Thus, a decision by a judge in the Southern District of New York (the federal trial court that encompasses Manhattan) does not set a precedent for other Southern Distirct judges; in fact it doesn't even set a precedent for the very judge who made the decision. In our system, mandatory stare decisis or binding precednets can only be set by appellate courts.

Another assumption is formualted as follows: "We assume that trial court judges are more concerned with ex post efficiency with respect to the individuals involved in the cases at hand, and less concerned with ex ante efficiency with respect to the
precedents established for society, than are appeals court judges." Some judges actually are concerned with "efficiency," ex post or ex ante. But despite the influence of the law and economics movement, efficiency as a motive is quite rare. Many judges have only the vaguest idea what the economic conception of efficiency is; of those who understand it, only a few endorse it as a proper end of judicial decisionmaking. Of those who endorse it, fewer still consider it the only proper end. Very few trial judges are likely to endorse "ex post efficiency" as a permissible goal of decision making. (I assume that "efficiency" means Kaldor-Hicks efficiency or welfare-maximizatin as defined by some Berson-Samuelson social welfare function.) If a judge were to explicitly state that her decision was based on ex ante efficiency, she would be reversed: such a decision would be so bad that it would be grounds for a writ of mandamus (allowing an instant appeal) even in the absence of a final judgment.

Lochner
One of the most extraordinary passages in Judicial Hierarchies and the Rule-Individual Tradeoff deals with the demise of Lochner and the rise of the New Deal Court. Here are the key passages:

The political process, in attempting to alleviate the shock of the Great Depression,
behaved in its normal manner and adopted various short term solutions as part of the New Deal. Since the problem was catastrophic, the solutions adopted were extraordinary. Among these were the Supreme Court rulings reducing contractual freedom. While these rulings were aimed at protecting statutes that would have previously been overturned, the effect was to institute rules that overturned explicit contracts.

And:

Of course, this outcome was not instantaneous. Lower courts could not immediately adopt principles favoring individuals at the expense of rules. For one thing, the subsidiary rules were not known or even knowable because under a regime of free contract, many events that would later be interpreted as violations were not so considered. If a contract protected a manufacturer against all claims arising from all product related injuries, for example, then there would be no need to determine if liability was based on negligence or was strict, and no need to distinguish between design and manufacturing defects. The law would not even recognize the existence of these differences; they are legally hidden distinctions. Moreover, to change the law requires bringing cases that establish new precedents. This is also a time consuming process. A case must first be heard at the level of the trial court. Before it becomes a precedent, however, it must be appealed through the higher level courts and affirmed. Each step takes time. Agents conducting the appeals process to change the law in the way discussed here include plaintiffs, and also attorneys (Rubin and Bailey, 1994).
However, as argued in this paper, lower level courts provide less protection to rules, and more to individuals, than do higher level courts. At any given time, lower courts would prefermore individual oriented rulings than they are allowed by the higher courts. Thus, if a higher court changes rulings to allow more attention to individuals (as did the Supreme Court after the Great Depression), then lower courts will gladly adopt these rulings. On the other hand, if the higher court has moved in the other direction, announcing more emphasis on rules (perhaps the situation that now obtains in the courts, with many Reagan-Bush judges in the Supreme Court), then we would expect the lower level courts to resist moving to this new level. Thus, for example, it should take longer to reverse the movement away from freedom of contract than it took to implement the movement in the first place.

Wow! I don't really know how to take these assertions. Presumably, all of these assertions include implied modal constraints, e.g. "It could have been the case that . . ." The authors can't possibly believe that they know that thier story about Lochner is true; at best it is a speculative possibility.
Even as speculative possibility, however, this account is highly contestable. Consider the following points:

The Lochner era included a complex web of legal rules. The diminuition of the federal right of freedom of contract doesn't by itelf establish the content of the law. Why not? Because Lochner implicates federalism as well as the substance of liberty of contract--shifting power from federal courts to state institutions. At the same time, however, the New Deal Corut was expanding the power of Congress--shifting power from state institutions to Congress.

It is very difficult to explain the results in particular Lochner era decisions on the basis of ex post efficiency. Take Lochner itself. The dispute was over the validity of regulations of the hours that might be worked by bakers. There is no evidence that the New York legislature was motivated by the plight of specific bakers from the ex post perspective, as opposed to the welfare of bakers as the welfare of the general class of bakers from the ex post perspective. The ex ante/ex post distinciton cuts no ice here.

More generally, even if we were to try to explain New Deal jurisprudence on the basis of efficiency, there are ex ante explanations. If Roosevelt's appointees were motivated by efficiency, then it seems most likely that they would have believed that New Deal policies would be welfare maximizing from the ex ante perspective. Do Mialon, Rubin, & Schrag really believe believe that the New Deal court thought it was making society worse off, ex ante?

Consent to sex matters, because it can transform coitus from being among the most heinous of criminal offenses into sex that is of no concern at all to the criminal law. Unfortunately, the normative task of making the law of rape more just is commonly impaired by conceptual confusion about what consent means. Consent is both a single concept in law and a multitude of opposing and cross-cutting conceptions of which courts and commentators tend to be only dimly aware. Thus, consent can be a mental state on a woman's part, an expression by her, or both; it can consist of facts about a woman's mental state or expressive conduct that do not necessarily constitute a defense to rape or consist only such facts as do constitute a defense to rape; and it can consist of facts about a woman's mental state or expressive conduct or a legal fiction of such facts. In so far as we are unaware of the ways in which this conceptual framework structures the way we think about consent, we risk confusing ourselves and others in undertaking to make the law of rape more just. Some examples are (1) confusion as to whether the defense of consent ought to be deemed to consist of a mental state on a woman's part or an expression; (2) confusion about the relationship between consent to sexual intercourse and resistance to it; and (3) confusion about the relationship between force and non-consent.

This paper reviews our understanding of the growing open source movement. We highlight how many aspects of open source software appear initially puzzling to an economist. As we have acknowledge, our ability to answer confidently many of the issues raised here questions is likely to increase as the open source movement itself grows and evolves. At the same time, it is heartening to us how much of open source activities can be understood within existing economic frameworks, despite the presence of claims to the contrary. The labor and industrial organization literatures provide lenses through which the structure of open source projects, the role of contributors, and the movement's ongoing evolution can be viewed.

Hay & Spier on Manufacturer Liability for Other-Caused Harms
Bruce L. Hay and Kathryn E. Spier (Harvard Law School and Northwestern University - Kellogg School of Management) have posted Manufacturer Liability for Harms Caused by Consumers to Others on SSRN. Here is the abstract:

Should the manufacturer of a product be held legally responsible when a consumer, while using the product, harms someone else? We show that if consumers have deep pockets then manufacturer liability is not economically efficient. It is more efficient for the consumers themselves to bear responsibility for the harms that they cause. If homogeneous consumers have limited assets, then the most efficient rule is "residual-manufacturer liability" where the manufacturer pays the shortfall in damages not paid by the consumer. Residual-manufacturer liability distorts the market quantity when consumers' willingness to pay is correlated with their propensity to cause harm. It distorts product safety when consumers differ in their wealth levels. In both cases, consumer-only liability may be more efficient.

Kathy Spier presented this paper at the USD/UCSD Law, Economics, & Politics series in the Spring. Recommended.

Liberal and conservative groups alike are mounting pre-emptive strikes, plotting strategy, raising money, planning public opinion polls, researching prospective nominees and organizing networks of supporters for what is expected to be the most explosive confirmation fight in decades.

. . . and . . .

People for the American Way, a high-profile liberal group, has already put together a Supreme Court confirmation war room replete with nearly three dozen computers. Such conservative groups as the American Center for Law, meanwhile, have already amassed a war chest of more than $3 million for the anticipated fight.

Must ecosystems be managed? Ecosystem management is a process that measures, controls and changes ecosystems to produce the most desirable environment in human terms. It derives its legitimacy from two developments, the theory of nonequilibrium in ecosystems and the extinction of pristine systems: ecosystems exist in a fluid and dynamic state, and there are no ecosystems that are completely unaffected by human impact. Therefore, according to the prevailing view, it is not possible to preserve ecosystems in a natural state. The purpose of this article is to question the logic of the foregoing conclusion. Neither nonequilibrium nor the absence of pristine systems dictates that ecosystems must be controlled and deliberately changed. The argument presented in this article is not that natural is preferable, but that it is possible, and that the debate between ecological preservation and environmental utilitarianism can and should occur. If science and law dictate that there are no options but to deliberately change ecosystems, as the managers would have us believe, then the debate has no relevance. Thus, the case is not that ecological preservation is a better choice than ecosystem management, but that there is a choice to make. Ecosystem management is a policy choice masquerading as an inevitability.

The recent spate of alleged corporate fraud has led to calls for new corporate crime legislation. Interestingly, there are already many such laws; before the passage of the Sarbanes-Oxley Act in 2002, some 300,000 federal corporate criminal offenses were already on the books. How did so much corporate crime legislation get enacted, given the lobbying strength of corporate interests? We would expect that wealthy, organized corporations would largely be able to get their way in the legislative process, yet they appear to be losing the battle over corporate crime legislation. How can we explain that outcome?

The 32nd Conference on Value Inquiry will be held at Louisiana State University, 8-10 April, 2005, on Reason and Evaluation. Broad participation is sought. Papers and proposals for papers that assess the nature and practice of reason, and the nature and practice of evaluation, are welcome. Early submission is strongly encouraged. Papers should be twenty minutes reading time. Plenary speakers include Alan Koors, David Copp, Marina Oshana, and Thomas Magnell. For more information and submission of an abstract or paper contact:
James Stacey Taylor, Conference Coordinator,
32nd Conference on Value Inquiry,
Department of Philosophy and Religious Studies Louisiana State University
Baton Rouge, LA 70803, USA.
Email: jtayl25@LSU.edu.
http://www.value-net.org/Conferences/32ndCVI/32ndcvi.html

Sunstein on Minalism at War
Cass R. Sunstein (University of Chicago Law School) has posted Minimalism at War (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:

When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. National Security Maximalism calls for a great deal of deference to the President, above all because of his authority as Commander-in-Chief of the Armed Forces. Liberty Maximalism asks courts to assume the same liberty-protecting posture in times of war as in times of peace. Minimalism asks courts to follow three precepts: the President needs clear congressional authorization for intruding on interests having a strong claim to constitutional protection; fair hearings should generally be provided to those who have been deprived of their freedom; and courts should discipline their own authority through narrow, incompletely theorized rulings. Of the three positions, Liberty Maximalism is the easiest to dismiss; courts will not and should not adopt it. National Security Maximalism is far more plausible, but it is in grave tension with the constitutional structure, and it is built on excessive optimism about the incentives of the President. The most appealing approach is minimalism, which does remarkably well in capturing prominent decisions of the Supreme Court in World War I, World War II, the Cold War, and the war on terrorism.

Trademark merchandising is big business. One marketing consultant estimated the global market for licensing and marketing sports-related merchandise at $17 billion in 2001. With this much money at stake, it's no surprise that trademark holders demand royalties for use of "their" marks on shirts, keychains, jewelry, and related consumer products. After all, the value of these products comes largely from the allure of the trademarks, and it seems only fair to reward the party that created that value…doesn’t it?
It turns out that the answer is more complicated than this intuitive account would predict. Trademark law historically has existed primarily to protect against the consumer deception that occurs when one party attempts to pass off its products as those of another. From an economic and policy perspective, it is by no means obvious that trademark holders should have exclusive rights over the sale of products that use marks for their ornamental or "intrinsic" value, rather than as indicators of source or official sponsorship. Trademark law seeks to promote, rather than hinder, truthful competition in markets for products sought by consumers; if a trademark is the product, then giving one party exclusive rights over it runs in tension with the law's pro-competitive goals, frequently without any deception-related justification. On the other hand, there may be circumstances in which consumers expect that trademark holders sponsored or produced products bearing their mark, in which case use of the mark by others - even as a part of a product - might result in genuine confusion.
Given these complexities, together with the economic interests at stake, one might expect that the law and practice of merchandising rights would be well-settled and reflect a considered balancing of the interests of trademark holders and their competitors. In reality, however, much of the multi-billion dollar industry of merchandise licensing has grown around a handful of cases from the 1970s and 1980s that established merchandising rights with little regard for the competing legal or policy concerns at stake. Those cases are far from settled law - indeed, at least as many decisions decline to give trademark owners the right to control sales of their trademarks as products. We think it is high time to revisit that case law and to reconsider the theoretical justifications for a merchandising right.
That review provides little support for trademark owners' assumptions about merchandising. Doctrinally, the most broad-reaching merchandising cases - which presumed infringement based on the public recognition of the mark as a trademark - were simply wrong in their analysis of trademark infringement and have been specifically rejected by subsequent decisions. Philosophically, even a merchandising right that hinges on likelihood of confusion raises competition-related concerns that should affect courts' analysis of both the merits and appropriate remedies in merchandising cases. Perhaps most importantly, recent Supreme Court case law suggests that, if it had the opportunity to evaluate the merchandising theory (something it has never done), the Court would deny the existence of such a right. Further, the Court would be right to do so. When a trademark is sold, not as a source indicator, but as a desirable feature of a product, competition suffers - and consumers pay - if other sellers are shut out of the market for that feature.

Robinson & Cahill on the Model Penal Code
Paul H. Robinson and Michael T. Cahill (University of Pennsylvania Law School and Brooklyn Law School) have posted Can a Model Penal Code Second Save the States from Themselves? (Ohio State Journal of Criminal Law, Vol. 1, No. 169, 2003) on SSRN. Here is the abstract:

This commentary summarizes some of the institutional obstacles to serious reform the authors encountered in their work on two recent criminal-code redrafting efforts, in Illinois and Kentucky. The authors call for a project to create a Model Penal Code Second, in the hope that such a centralized, high-profile, and less directly politically charged or biased effort would be an effective spur to major reform at the state level.

IntroductionCausation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc.), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the death of the pedestrian but did not cause John Kerry to win the Iowa caucuses in 2004. In these cases, various notions of causality converge. The person on the street, the scientist, and lawyer can all agree in such cases that for all practical purposes X caused Y but not Z. But sometimes the various notions of cause come apart exposing ambiguities and vagueness in both ordinary and legal talk about causes and effects. This post provides a very basic introduction to causation for law students (especially first-year law students) with an interest in legal theory.Cause-in-Fact & Legal Cause
Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks!Cause-in-FactWhat do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause.Necessary and Sufficient Causes
The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause."
X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart.The Role of Counterfactuals
The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim.
What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation.Overdetermination
Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben.Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause.
The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation.Coincidence
Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences.
Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident.Legal CauseWhat do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause.
First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law.
Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable.
Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away.Probability
Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post.Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y.Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events.
Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:

--The letter “p” is frequently used to represent probability. Most law students encounter this notation in Justice Hand’s famous opinion in the Carroll Towing case (B < PL or “burden less than loss discounted by probability). The notation p(x) = 0.1 can be read “the probability of x equals 1/10.” And the notation, p=0.5 can be read “probability equals one in two.”
--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1.

Types and Tokens
So far, we have been focusing mostly on cases where an individual instance of harm is caused by some particular wrongful action. But of course, we frequently think about causation as a more general relationship. For example, in science we might speak of “causal laws.” There is no standard terminology for this distinction: we might use the phrase “individual causation” and “systematic causation.” One helpful bit of terminology for getting at this idea is to differentiate “types” and “tokens.” Ben’s running the rend light at a particular time and location is an event token and it is a token of a type of events, i.e. the type “running a red light.”
Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation.Conclusion
Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn.Bibliography

H.L.A. Hart & Tony Honore, Causation in the Law (2d ed. 1985). This is the book on causation and the law. Currently out of print, but used copies are available on Amazon.com.Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley.